Monday, September 26, 2011

Troy Davis very probably shot and killed Mark MacPhail, a Savannah, Ga., police officer, in the early morning hours of Aug. 19, 1989, as MacPhail went to the aid of a homeless man being assaulted by Davis and two friends. That is the conclusion a dispassionate reader is quite likely to reach after reading the 172-page opinion by U.S. District Court Judge William T. Moore Jr. rejecting Davis’s claim of actual innocence of the murder for which he was convicted 20 years earlier. Davis’s actual-innocence claim drew nationwide attention and many thoughtful supporters during a long legal battle that ended with his execution by lethal injection late Wednesday evening [Sept. 21]. Now, many critics and opponents of capital punishment are hoping Davis’s case will get Americans to take a new look at the doubts about the way the death penalty is administered in the United States. Those doubts are familiar and well grounded. The death penalty is arbitrarily imposed, typically on the poor and virtually always on defendants with less than fully adequate legal representation. And there is the possibility that a wrongful conviction will lead to the execution of an innocent person. Davis’s case, however, adds little to most of these arguments, including the actual-innocence issue. The killing of a police officer  MacPhail was in uniform, moonlighting as a security guard  is one “special circumstance” that death penalty states use to define capital murder. The four-day trial and two-hour deliberation by a racially mixed jury were quicker, and the Georgia Supreme Court’s decision affirming the conviction and sentence shorter, than typical in other states. But no patent unfairness or constitutional error leaps out from the account of the trial and state appeal. Beginning in 1994, Davis and a succession of post-conviction lawyers waged a habeas corpus battle in state and then in federal court to gain a new trial by proving his innocence through newly gathered evidence. Two appellate courts, the Georgia Supreme Court and the Eleventh U.S. Circuit Court of Appeals, denied Davis a full hearing on the new evidence. When Davis filed an original habeas corpus petition with the U.S. Supreme Court, however, the justices took the extraordinary step of transferring the case to a federal district court judge for a full hearing. Dissenting, Justice Antonin Scalia said the court had done no such thing in the past 50 years. Moore was a Jimmy Carter-appointed U.S. attorney for four years before being appointed to the federal bench in 1994 by another Democratic president, Bill Clinton. He presided over a two-day hearing on Davis’s new evidence in June 2010. He gave Davis two favorable rulings on unsettled legal issues. First, Moore held squarely that the Constitution bars the execution of someone who can make a clear and convincing demonstration of actual innocence. Second, Moore held that a federal habeas court can re-evaluate an actual-innocence claim already considered by a state court. After carefully laying out the new evidence, however, Moore rejected it as “largely smoke and mirrors.” The supposed recantations by seven witnesses were “largely not credible or lacking in probative value,” he wrote in the opinion filed two months after the hearing. “The vast majority” of trial evidence, Moore said, “remains intact.” To be clear, Davis  age 21 at the time and known by the street name “Rough as Hell”  acknowledged on the stand being one of three men involved in the beating that MacPhail moved to break up. The only issue at trial was whether Davis or his friend, Sylvester “Red” Coles, shot and killed MacPhail as they fled the scene. The witnesses’ accounts pointed to Davis, not Coles, based in part on the clothes each was wearing. The accounts of the witnesses’ identifications and statements do not indicate suggestive procedures used by police. The victim of the beating, Larry Young, could not – and did not -- identify Davis as his assailant. The witnesses who did identify Davis as the shooter appear to have testified at trial without embellishing their accounts with newfound certainty. And the prosecution also had evidence of a statement Davis allegedly made to a friend that day confessing that he had shot MacPhail because the officer had seen his face and could identify him later. The recantations that Davis’s supporters emphasized in the days before the execution crumble under Moore’s examination. Of the seven witnesses, two did not actually say that they had lied in court. Two who had submitted affidavits, including Young, were not called as witnesses at the hearing. And two others Moore found simply unbelievable, including the friend who tried to retract his account of Davis’s confession. Moore accepted only one recantation: the jailhouse snitch who claimed that Davis confessed to the shooting. But Moore said the trial testimony was clearly fabricated  in effect, unlikely to have been a factor in the jury’s verdict. Jurors are told that a conviction requires proof beyond a reasonable doubt, but not beyond any doubt whatsoever. On that standard, the jury’s verdict appears valid, and Moore appears on solid ground in finding the new evidence insufficient to conclude that no rational juror would have convicted Davis with all the information available. Supporters of capital punishment believe that standard is good enough for administering the ultimate sanction, even at the risk that some concede of executing an innocent person. Some number of innocent people have surely been executed in the United States. But Troy Davis is probably not one of them.

Monday, September 19, 2011

House Republicans could not get to the microphones and e-mail blasts fast enough after the Obama administration announced in February that it would no longer defend the constitutionality of the federal Defense of Marriage Act (DOMA). House Speaker John Boehner denounced the move as “pandering” and immediately raised the possibility of the House intervening in litigation to defend the 1996 law, which denies federal benefits to same-sex couples. Boehner made good on his plan by winning party-line approval for the House Bipartisan Legal Advisory Group to intervene in suits challenging DOMA, including one in California by a federal court employee seeking health coverage for her legally married wife equal to that available to married opposite-sex couples. But the House’s legal team apparently is less eager than Boehner was in February to call attention to its defense of the law. In a Sept. 9 filing, House general counsel Kerry Kircher put the kibosh on video recording the next hearing in the case, scheduled for Oct. 21 before U.S. District Court Judge Jeffrey S. White in San Francisco. “Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives respectfully advises that it prefers not to participate in this district’s pilot project permitting video recording of courtroom proceedings,” Kircher wrote in a two-sentence memorandum, posted here on the web site of the gay publication Metro Weekly. “Accordingly Intervenor-Defendant declines to consent.” The move drew immediate criticism from House Minority Leader Nancy Pelosi as well as the gay rights group representing Karen Golinski in the case, Golinski v. U.S. Office of Personnel Management, 3:10-cv-0257-JSW. “It is outrageous that the leadership of the U.S. House of Representatives wants to shroud in secrecy their use of tax dollars to try to defend discrimination," Tara Borelli, a staff lawyer with Lambda Legal, said in a prepared statement. Pelosi, a Democrat from San Francisco, was not informed of the House move in advance, according to her spokesman, Drew Hammill. “Leader Pelosi strongly supports transparency,” Hammill told Metro Weekly, “but this decision by Speaker Boehner is not a surprise since his defense of the indefensible 'Defense of Marriage' Act does not have the facts or the law on its side.” Boehner’s office did not respond to a request for comment, the newspaper said. The move reflects not only on the House Republican leadership but also on the federal judiciary for its tentative move toward opening the courts to 21st-century style coverage of proceedings. Judge White opened the issue because his is one of the courts participating in a pilot program for camera coverage authorized by the U.S. Judicial Conference in September 2010. Open-access advocates applauded the decision, but with one hand behind their back because of its many limitations. The pilot project was to extend only to courts whose judges volunteered to participate. It would apply only to civil cases; a federal statute bars either audio or video coverage of criminal trials and hearings. And even civil cases could be recorded, broadcast, or streamed only if all parties to the case agreed. The dual-consent requirement was presumably intended to protect the privacy of private civil litigants. The government’s interest  or in this case the House of Representatives’ interest  in limiting the public’s opportunity to see or hear a proceeding challenging a federal law is hard, if not impossible, to discern. The various limitations in the pilot project appear to have been essential, however, to winning approval from the Judicial Conference, the federal judiciary’s policymaking arm. The federal courts had conducted a pilot project for broadcast coverage of appellate proceedings in the early 1990s. The Federal Judicial Center, the conference’s research arm, officially pronounced the experiment a success, but the conference let it die in 1996. The impetus for the new experiment came in part from Congress, which over the years indicated increasing interest in legislation to mandate radio or TV coverage of federal courts. Judge John Tunheim, a federal judge in Minneapolis who formerly headed the conference’s committee on court administration and management, told me earlier this year that he had worked with others in drafting rules for broadcast coverage just in case Congress acted. A second push for action came from the Ninth U.S. Circuit Court of Appeals, which gave a green light to plans for Internet streaming of the federal court trial in early 2010 of the challenge to California’s anti-gay marriage Proposition 8. The Supreme Court squelched that plan, however, by ruling that Judge Vaughn Walker had not followed proper procedure in amending local court rules to permit the plan. Federal judges in California have also been prime movers in Golinski’s challenge to DOMA. Golinski, a Ninth Circuit employee, married Amy Cunninghis in California during the six-month window between the California Supreme Court’s decision recognizing same-sex marriages and passage of Proposition 8 in November 2008. In September 2008, she submitted an application to enroll Cunninghis under the court’s health insurance plan. Chief Judge Alex Kozinski approved the application, but the Office of Personnel Management refused, forcing Golinski to sue. The Justice Department filed a brief in July 2011 arguing that DOMA is unconstitutional. The House’s camera-shy lawyers will have their own arguments to make in the October hearing. But anyone interested will have to go to San Francisco to watch or wait for a printed account to read what they had to say.

Monday, September 12, 2011

&nbsp As California’s secretary of state, Jerry Brown helped draft and win overwhelming voter approval of a far-reaching initiative in June 1974 requiring disclosure of campaign spending in state races and establishing conflict-of-interest restrictions on state and local officeholders. Brown’s support for Proposition 9 helped win nomination on the same day as the Democratic candidate for governor and in November a narrow victory over the Republican candidate. Imagine, however, that modern-day Republicans who see constitutional flaws in virtually any campaign finance regulations had won the state races for governor and attorney general in November 1974. And imagine further that in litigation over the initiative, a federal judge had ruled Proposition 9 unconstitutional and that the hypothetical governor and attorney general – who had opposed the measure all along -- then chose not to appeal the ruling. Under that scenario, would the official sponsors of the ballot initiative have standing to appeal the ruling, hoping to reverse it or at least to get a definitive decision? If not, wouldn’t the state officials who refused to appeal the ruling have succeeded in nullifying the will of the people of California in passing the initiative? Fast forward four decades, and that is the legal question now pending before the California Supreme Court on the litigation over Proposition 8, the 2008 ballot initiative that bars marriage rights for same-sex couples. Brown, now back in the governor’s office, and a Democratic attorney general, Kamala Harris, are declining to appeal a federal judge’s ruling that the anti-gay marriage initiative violates federal constitutional rights. The official sponsors of the ballot measure, ProtectMarriage.com and the organization’s leaders, responded by seeking to appeal in place of the state officials. And the Ninth U.S. Circuit Court of Appeals decided that it needs the California high court to say whether, as a matter of state law, a ballot initiative sponsor has legal standing to do so. From all that appears from the arguments in the case last week [Sept. 6], the California court is inclined to say yes. Among the seven justices, a majority appeared ready to rule that safeguarding what the court has previously called the “precious” right of initiative requires recognizing the right of the initiative’s sponsors to defend it in court if state officials refuse. Leaving an initiative with no one to defend would amount to “nullifying the great power that the people have reserved for themselves,” remarked Justice Joyce Kennard, one of the court’s liberals. Conservative Justice Ming W. Chin similarly saw a threat to the initiative process if state officials could acquiesce in judicial rulings to strike down ballot measures. “So the attorney general and the governor get to pick the laws they want to enforce?” he asked. The Chief Justice, Tani Cantil-Sakauye, appointed at the start of the year, warned in like vein that the initiative process would be “illusory” if ballot measure sponsors could not step in to ensure a full defense in court. The oral arguments and friend-of-the-court briefs in the case, Perry v. Brown, featured a reversal of traditional ideological positions on legal standing. Conservative groups typically thought of as opposed to expansive views of legal standing argued in favor of the anti-gay marriage group’s right to appeal the earlier ruling, while groups ordinarily thought of as liberal, including the League of Women Voters and gay rights’ organizations, argued against standing. The Ninth Circuit felt obliged to ask for advice because neither the California nor U.S. Supreme Court has definitively answered the question up to now. The U.S. Supreme Court, in a New Jersey case, did recognize the right of state legislators to defend a state law when executive officials refuse, but based the ruling on the particulars of New Jersey law (Karcher v. May, 1987). A decade later, the court indicated “grave doubt” whether sponsors of an Arizona ballot measure could defend it in court, but dismissed the case as moot without reaching a definite conclusion (Arizonans for Official English v. Arizona, 1997). In California, state courts have traditionally been liberal in allowing ballot measure sponsors to intervene in litigation without specifying the exact basis for doing so. “This issue has never come up definitively in our jurisprudence,” remarked Justice Goodwin Liu, who was confirmed to his post only a few days earlier after his nomination to the Ninth Circuit was thwarted by Republican opposition. Liu suggested, however, that the California court’s ruling on the state law issue may not be determinative for the Ninth Circuit. That’s because federal courts have interpreted the “case or controversy” requirement of Article III of the U.S. Constitution somewhat strictly. Even after getting an answer from the California court, the Ninth Circuit could rule that with no state officials to defend Proposition 8, there is no longer a live controversy for federal courts to consider. Gay rights groups might understandably hope for a ruling that blocks any further appeal and wipes Proposition 8 off the books. As Kennard remarked, however, the state court’s ruling will not be limited to gay issues. The initiative process has been much abused in recent decades, in California and elsewhere. But it remains a potentially valuable safeguard for the people against unresponsive and unaccountable government. There is little to be lost, and much to gain, in making sure that once enacted, a popularly approved ballot initiative gets its day in court, at every level, until a final resolution.

Monday, September 5, 2011

Walter Masterson was on a conference call in the World Trade Center’s Building 5 when the first hijacked plane hit on Sept. 11, 2001. He got out of the building and, disconcerted, had to be directed by a police officer to get to safety. For the next two weeks, Masterson recalls, New Yorkers were on their best behavior. “Rudeness vanished,” he says. “Everybody helped. Nobody wanted for anything.” As it was in New York, so it was in the rest of the country. Forget where you were on September 11. Remember instead how you felt for the next two weeks or so. Americans were as one in solemn mourning and steely resolve. We knew the enemy: Al Qaeda. We knew where it was: Afghanistan. We knew what to do: go to war, with might and right on our side. Then things went wrong, terribly wrong in many respects. At the direction of Attorney General John Ashcroft, federal agents began rounding up a total of 762 young men from the Middle East or Pakistan using immigration laws as the pretext to justify ethnic and religious profiling. Later, the Justice Department’s inspector general chastised the government for holding many of the immigrants in punitive conditions, often with delayed access either to family members or lawyers. Few if any useful leads to Al Qaeda were found, but the dragnet helped justify anti-Muslim sentiment among the public at large that, sadly, persists a decade later. Meanwhile, President Bush and Congress were rushing to imperil civil liberties with a law called the USA Patriot Act to obscure its un-American provisions. Enacted barely six weeks after 9/11, the law gave the feds carte blanche to use “national security” to justify rummaging through library records, phone calls, and e-mails with less than the probable cause standard that the Framers wrote into the Fourth Amendment. Separately, Bush issued a secret executive order expanding the government’s authority under the Foreign Intelligence Surveillance Act to tap into electronic communications, even those of U.S. citizens. A decade later, the Patriot Act has been renewed twice, admittedly with some ameliorating changes, and Bush’s foreign intelligence surveillance program has been continued, again with some helpful restrictions. The government says these law enforcement tools have been essential to the war on terror, but detailed studies  notably, this report by the Breakthrough Institute, a progressive think tank in California  have found no evidence that the controversial tactics have played any significant role in thwarting terrorist plots. The war in Afghanistan went well: the Taliban displaced, a pro-Western democrat installed as interim leader, U.S. aid for reconstruction promised. Behind the scenes, however, the Bush White House, abetted by presidential power partisans in the vice president’s office and the Justice Department, were hatching plans to put the United States on the wrong side of the law of war. “Enemy combatants” rounded up in a difficult-to-define battlefield were to be transported to the U.S. naval base at Guantanamo Bay, Cuba, chosen precisely because it was thought to be outside the reach of U.S. courts: a law-free zone. The administration claimed the power to hold foreigners and even U.S. citizens with no hearing whatsoever. It denied any obligation to treat the Guantanamo prisoners according to the terms of the Geneva Conventions. And, most shockingly, it claimed the right to interrogate “high-value” Al Qaeda suspects in secret prisons using techniques such as forced isolation, sleep deprivation, stress positions, and waterboarding that amounted to torture. The Justice Department unpersuasively denied that the “enhanced interrogation techniques” were torture. In any event, the department argued in an opinion later repudiated, the president had power as commander in chief to order the use of torture, laws to the contrary notwithstanding. Then came the war on Iraq, entered into divisively on a dubious rationale supported by dubious evidence. The war drained resources from Afghanistan and made it harder to keep the support of the world’s Muslim communities in the just and necessary fight against Al Qaeda. And the war drained resources from domestic needs, helping put the country into a huge fiscal hole. There were other mistakes, perhaps more understandable. More money was spent on homeland security than necessary  $75 billion per year in state and federal spending, according to one estimate  but that can happen to well-intentioned government programs. Some 9/11 victims or survivors  first responders with serious injuries or debilitating illnesses  have had to work too hard to get compensation, but that too can happen when the government tries to dispense mass justice. Those other mistakes, however, could have been avoided. Indeed, the other branches of government tried. The Supreme Court forced the administration to recognize the Geneva Conventions and to allow judicial review at Guantanamo. Congress outlawed the enhanced interrogation techniques  after Bush had given them up  and smoothed the edges a bit on the Patriot Act and foreign intelligence surveillance. Apart from those changes, however, President Obama has done less than he had promised to get the United States back to its values in combating terrorism. So on this tenth anniversary we perhaps can best honor 9/11’s victims by remembering how the country lost its way afterward and by vowing not to let it happen again.

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About this Blogger

Kenneth Jost is author of Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and Trending Toward #Justice. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor. He is a contributing writer with CQ Researcher and was a member of the CQ Researcher team that won the 2002 American Bar Association Silver Gavel Award. His articles have appeared in national and legal publications; he also appears as an analyst on national and local radio and television news programs.

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